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Navajo Statehood: From Domestic Dependent Nation To 51st State, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, …

Brazil’S Violence Against Indigenous Peoples, Andre Taylor

Human Rights Brief

Centuries of violence and displacement define the relationship between indigenous peoples and the successive governments of Brazil. As Brazil embarks on a massive expansion of its agribusiness and mining operations, the systemic denial of land rights and illegal economic activity on protected lands has threatened traditional ways of life practiced by indigenous peoples. The most aggressive policy taken by the Brazilian government has involved legitimizing land claims on unregistered ancestral indigenous lands for development, putting 37,800 square miles of territory at risk for exploitation by loggers, ranchers, and farmers.

􏰀Enough􏰁S Enough􏰂: Protest Law And The Tradition Of Chilling Indigenous Free Speech, Alix H. Bruce

American Indian Law Journal

Indigenous peoples in the United States were not granted the full scope of their rights as citizens under the Constitution until the enactment of the Indian Citizenship Act of 1924. Before that—and after—several state and federal campaigns worked to stifle the civil rights of Indigenous peoples. Many of those unjust and unconstitutional policies were upheld by the Supreme Court. In the current era, the anti-pipeline protests on the edge of the Standing Rock Sioux Reservation in North Dakota sparked a new recognition of Indigenous resistance under the First Amendment—and vicious state and federal backlash against Indigenous free speech via the …

Gmos, International Law And Indigenous Peoples, Casandia Bellevue

Pace International Law Review

This Article sprung from a desire to discover why—despite scientific uncertainty and the oft-cited precautionary principle in international law—genetically modified organisms are still allowed to spread via international trade and natural ecological cycles. While exploring this topic, it did not take long to come across the environmental justice impacts of genetically modified crops, and their particularly disparate impact upon indigenous peoples across the globe. Not only are GMOs threatening biodiversity and our planet, but also the very existence and cultural foundations of many indigenous groups.

This Article seeks to answer the following questions: What are the international agreements that can …

Legacy In Paradise: Analyzing The Obama Administration’S Efforts Of Reconciliation With Native Hawaiians, Troy J.H. Andrade

Michigan Journal of Race and Law

This Article analyzes President Barack Obama’s legacy for an indigenous people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to …

Slides: Crystalised Not Frozen: Addressing Historical Exclusion Of Traditional Owners From Water, Poh-Ling Tan

Indigenous Water Justice Symposium (June 6)

Poh-Ling Tan, Griffith University

13 slides

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

Moving Beyond Rhetoric: Working Toward Reconciliation Through Self-Determination, Brenda L. Gunn

Dalhousie Law Journal

The settlement of the residential school system class action and the creation of the Truth and Reconciliation Commission of Canada have renewed discussions on the relationship between Indigenous peoples and the Crown as part of achieving reconciliation. This article argues that promoting reconciliation in Canada requires addressing the underlying issue that led to the residential school system: the unilateral impositionofcolonial law with the goal of assimilating Indigenous peoples. The best way to prevent such actions in the future requires realizing Indigenous peoples right to self-determination. The U.N. Declaration, with its recognition of Indigenous peoples' right to self-determination, provides a framework …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …

The Application Of Gladue To Bail: Problems, Challenges, And Potential, Jillian Anne Rogin

LLM Theses

This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim …

Commonality Among Unique Indigenous Communities: An Introduction To Climate Change And Its Impacts On Indigenous Peoples, Randall S. Abate

Journal Publications

This special Issue of the Tulane Environmental Law Journal explores how climate change affects the rights of indigenous peoples. Climate change is a global environmental problem caused by greenhouse gas emissions. Indigenous peoples generally contribute very limited quantities of greenhouse gases to the global atmosphere. Although the causes of climate change are global, the adverse impacts of this problem are disproportionately burdening indigenous peoples.

In recognition of the growing global problem of climate change, legal strategies to address climate change through mitigation and adaptation have been undertaken. This Issue recognizes that indigenous peoples are particularly vulnerable to climate change, both …

Settler Colonialism And Reclamation: Where American Indian Law And Natural Resources Law Meet, Sarah Krakoff

Publications

Three hours west of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction …

The Conceptual And Jurisprudential Aspects Of Property In The Context Of The Fundamental Rights Of Indigenous People: The Case Of The Shuar Of Ecuador, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This article draws attention to several problems relating to indigenous ownership of both real and intellectual property, and their related impact upon the well-being and essential dignity of indigenous peoples. Part II of this article introduces the concept of indigenous ownership of real and intellectual property. Part III digs deeper into challenges to indigenous ownership of land, using the Shuar people of Ecuador as a case study. Part IV examines the problem of bioprospecting, as well as some of its implications, and discusses how the problem has affected the Shuar. It additionally summarizes a few steps toward developing an effective …

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights , Allison M. Dussias

Cleveland State Law Review

The Article examines three pathways recently followed by tribes and Native communities in seeking protection of their rights to valued subsistence resources focusing on the legal principles and theories on which they have relied, including treaty rights, environmental law, tribal sovereignty, and international human rights law, as they have followed their different pathways.

Indigenous People And Environmental Justice: The Impact Of Climate Change, Rebecca Tsosie

University of Colorado Law Review

The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental selfdetermination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate …

Healing The Bishop: Consent And The Legal Erasure Of Colonial History, Jennifer Anne Hamilton

Studio for Law and Culture

During the summer of 1998, Hubert O’Connor, a white Catholic bishop and former Indian residential school principal in British Columbia, participated in what a local magazine termed “a centuries-old native ceremony”: an indigenous healing circle. In 1991, O’Connor was indicted on criminal charges for sexual offences he had allegedly committed some thirty years earlier against five indigenous women, all of whom were his former students and/or employees. While O’Connor acknowledged having sexual relations with these women, he denied having committed any illegal acts, maintaining that these relationships had been consensual. While the trial court originally convicted O’Connor of rape and …

Indigenous Peoples' Free Prior And Informed Consent In The Inter-American Human Rights System, Alex Page

Sustainable Development Law & Policy

No abstract provided.

Perceived Challenges To Recognition On Prior And Informed Consent Of Indigenous Peoples And Other Local Communities: The Experiences Of The Inter-American Development Bank, Anne Deruyttere

Sustainable Development Law & Policy

No abstract provided.

Premature Predictions Of Multiculturalism?, Kirsten Matoy Carlson

Michigan Law Review

The late twentieth century ushered in a renewed interest in constitutional democracy as Latin American states revised earlier constitutions and post-Communist countries in Eastern Europe wrote new constitutions to reflect their democratic aspirations. Processes of constitution-making continued throughout the 1990s with new constitutions emerging in states throughout Africa, Latin America, and Europe. The rejuvenation of constitution-making also renewed scholarly interest in comparative constitutionalism. Scholars investigating constitution-making processes in Eastern Europe and Africa soon developed theories on how these processes and the contents of national constitutions changed in the late twentieth century. Donna Lee Van Cott contributes to the new literature …

The United States Supreme Court And Indigenous Peoples: Still A Long Way To Go Toward A Therapeutic Role, S. James Anaya

Seattle University Law Review

Although the Court has in many instances ruled in favor of Native Americans, its approach in the multiple cases it has decided involving them could rarely be called therapeutic in the sense that term is used in the Introduction to this issue. The Court's jurisprudence in this area provides perhaps the starkest American example of the appellate judiciary functioning in an antitherapeutic role in the context of majority-minority conflicts. In this brief Article, I will identify particular aspects of the Court's jurisprudence to make this point. Further, I will suggest what is needed in order for the Court to function …

Reconstituting Haudenosaunee Law, Sovereignty, And Governance, Errol E. Meidinger

Journal Articles

This article introduces a symposium issue on "Law, Sovereignty, and Tribal Governance: The Iroquois Confederacy" that grew out of a conference at the University at Buffalo Law School in 1998. The symposium was heavily attended and debated by the indigenous peoples of the region. The article argues that core lessons of the conference included the requirement to understand and implement sovereignty as tool of cultural survival, particularly in its insistence on a land base; that sovereignty has been adopted as a central concept by Indian peoples both because it provides a necessary social bulwark and because it facilitates a discursive …

Convoluted Essence: Indian Rights And The Federal Trust Doctrine, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

In recent years there has been growing resentment from what one might term, for lack of a better phrase, the "anti-trust" segment. These commentators have offered a host of arguments to support their position: the trust doctrine has been and is still used primarily to "give moral color to depredations of tribes;" it is "an assertion of unrestrained political power over Indians, power that may be exercised without Indian consent and without substantial legal restraint;" and it is really a "metaphor for federal control of Indian affairs without signifying any enforceable rights of the tribal `beneficiaries.'" Yet others suggest that …

Indian Religious Freedom: Recognized/Denied, David E. Wilkins

Jepson School of Leadership Studies articles, book chapters and other publications

Clinton's sacred site executive order applies to all "federal lands" and to all "recognized" Indian tribes. A "sacred site" is defined as "any specific, discrete, narrowly delineated location of Federal land that is identified by an Indian tribe, or Indian individual... as sacred by virtue of its established religious significance to, or ceremonial use by, an Indian religion; provided that the tribe or appropriately authoritative representative of an Indian religion has informed the agency of the existence of such a site."

The issue that seemed most troublesome from William Downes' legal perspective, besides the alleged Establishment clause violation, was that …